EXHIBIT 10.09
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of August 13, 1998 (the "Agreement"), by
and among AFC Franchise Acquisition Corp., a Delaware corporation
("Acquisition"), and the other parties signatories hereto (each a "Stockholder"
and collectively, the "Stockholders").
RECITALS
WHEREAS, Cinnabon International, Inc., a Delaware corporation (the
"Company"), AFC Enterprises, Inc., a Minnesota corporation and Acquisition
propose to enter into an Agreement and Plan of Merger (the "Merger Agreement"),
pursuant to which Acquisition would be merged (the "Merger") with and into the
Company (capitalized terms not otherwise defined herein shall have the meaning
given to such terms in the Merger Agreement); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Acquisition has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Representations and Warranties of Stockholders. Each Stockholder
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hereby represents and warrants to Acquisition as follows:
(a) Ownership of Securities. The Stockholder is the record and beneficial
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owner of the number of shares of the Company's common stock, $.01 par value per
share (the "Common Stock"), set forth on Schedule I hereto. The Stockholder has
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sole voting power and sole power to issue instructions with respect to the
voting of the Common Stock, sole power of disposition, sole power of exercise or
conversion and the sole power to demand appraisal rights, in each case with
respect to all of the Common Stock.
(b) Power; Binding Agreement. The Stockholder has the legal capacity,
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power and authority to enter into and perform all of the Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by the Stockholder will not violate any other agreement to which
such Stockholder is a party including, without limitation, any trust agreement,
voting agreement, stockholder's agreement or voting trust. This Agreement has
been duly and validly executed and delivered by the Stockholder and constitutes
a valid and binding agreement of such Stockholder, enforceable against the
Stockholder in accordance with its terms. If the Stockholder is married and the
Common Stock constitutes community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes
a valid and binding agreement of, the Stockholder's spouse, enforceable against
such person in accordance with its terms.
(c) No Conflicts. No filing with, and no permit, authorization, consent or
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approval of, any state or federal public body or authority is necessary for the
execution of this Agreement by the Stockholder and the consummation by the
Stockholder of the transactions contemplated hereby and neither the execution
and delivery of this Agreement by the Stockholder nor the consummation by the
Stockholder of the transactions contemplated hereby nor compliance by the
Stockholder with any of the provisions hereof shall conflict with or result in
any breach of any applicable partnership or other organizational documents
applicable to the Stockholder, result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise to any
third-party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to which
the Stockholder is a party or by which the Stockholder's properties or assets
may be bound or violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to the Stockholder or any of the
Stockholder's properties or assets.
(d) No Liens. The Common Stock is now, and at all times during the term
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hereof will be, held by the Stockholder, or by a nominee or custodian for the
benefit of the Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances whatsoever, except for any encumbrances arising
hereunder and except for restrictions on transfer arising under applicable
federal and state securities laws.
2. Agreement to Vote Shares. Each Stockholder hereby agrees that during
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the period commencing on the date hereof and continuing until the first to occur
of (a) the Effective Time (as defined in the Merger Agreement), (b) the
termination of the Merger Agreement in accordance with its terms or (c) October
15, 1998, at every meeting of the stockholders of the Company called with
respect to any of the following, and at every adjournment thereof, and on every
action or approval by written consent of the stockholders of the Company with
respect to any of the following, the Stockholder shall vote or cause to be voted
all of the Common Stock that it beneficially owns on the record date of any such
vote: (i) in favor of the Merger, the adoption of the Merger Agreement and the
approval of the terms thereof and (ii) against the following actions (other than
the Merger and the transactions contemplated by the Merger Agreement): (1) any
merger, consolidation or other business combination involving the Company or its
subsidiaries; (2) a sale, lease or transfer of a material amount of assets of
the Company or its subsidiaries or a reorganization, recapitalization,
dissolution or liquidation of the Company or its subsidiaries that under
applicable law requires the approval of the Company's stockholders; (3) (a) any
change in the majority of the board of directors of the Company (except to fill
a vacancy or vacancies in such board of directors resulting from the death or
permanent disability of a member thereof);
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(b) any material change in the present capitalization of the Company or any
amendment of the Company's Certificate of Incorporation or By-laws that under
applicable law requires the approval of the Company's stockholders; (c) any
other material change in the Company's corporate structure or business that
under applicable law requires the approval of the Company's stockholders; or (d)
any other action that under applicable law requires the approval of the
Company's stockholders which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, or materially adversely affect the
consummation of the Merger or the transactions contemplated by the Merger
Agreement or this Agreement.
3. PROXY. THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS ACQUISITION AND
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THE PRESIDENT OF ACQUISITION AND THE TREASURER OF ACQUISITION, IN THEIR
RESPECTIVE CAPACITIES AS OFFICERS OF ACQUISITION, AND ANY INDIVIDUAL WHO SHALL
HEREAFTER SUCCEED TO ANY SUCH OFFICE OF ACQUISITION, AND ANY OTHER DESIGNEE OF
ACQUISITION, EACH OF THEM INDIVIDUALLY, THE STOCKHOLDER'S PROXY AND ATTORNEY-IN-
FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE OR ACT BY WRITTEN CONSENT WITH
RESPECT TO THE COMMON STOCK SOLELY WITH RESPECT TO THE MATTERS IN CLAUSES (i)
and (ii) OF, AND SOLELY IN ACCORDANCE WITH, SECTION 2 HEREOF. THIS PROXY IS
COUPLED WITH AN INTEREST AND SHALL BE IRREVOCABLE, AND THE STOCKHOLDER WILL TAKE
SUCH FURTHER ACTION OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO
EFFECTUATE THE INTENT OF THIS PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY
GRANTED BY IT WITH RESPECT TO THE COMMON STOCK.
4. Covenants of the Stockholder. The Stockholder hereby agrees and
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covenants that:
(a) Restriction on Transfer, Proxies and Noninterference. The Stockholder
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shall not, directly or indirectly: (i) except pursuant to the terms of the
Merger Agreement or by will or the laws of descent and distribution, offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of the Stockholder's
Common Stock; (ii) except as contemplated hereby, grant any proxies or powers of
attorney which are in any way inconsistent with the provisions of Section 3
hereof, deposit any Common Stock into a voting trust or enter into a voting
agreement with respect to any Common Stock; or (iii) take any action that would
make any representation or warranty contained herein untrue or incorrect or have
the effect of preventing or disabling the Stockholder from performing its
obligations under this Agreement.
(b) Waiver of Appraisal Rights. Each Stockholder hereby waives any rights
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of appraisal or rights to dissent from the Merger that such Stockholder may
have.
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(c) Further Assurances. From time to time, at the other party's request
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and without further consideration, each party hereto shall execute and delivery
such additional documents and take all such further lawful action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transaction contemplated by this Agreement.
5. Delivery of Stock Certificates. Each Stockholder hereby agrees that at
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or prior to the effective date of the Merger, it will deliver the Certificates
for the Common Stock set forth below its name on the signature pages hereto (or
an Affidavit of Loss and Indemnity Agreement therefor, in form acceptable to
Acquisition) for delivery at the Closing pursuant to the terms of the Merger
Agreement.
6. Stockholder Capacity. No person executing this Agreement who is or
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becomes during the term hereof a director of the Company makes any agreement or
understanding herein in his or her capacity as such director. Each Stockholder
signs solely in his or her capacity as the record and beneficial owner of, or
the trustee of a trust whose beneficiaries are the beneficial owners of, such
Stockholder's Common Stock.
7. Assignment. The rights (but not the obligations) of Acquisition
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hereunder may be assigned, in whole or in part, to any direct or indirect wholly
owned subsidiary of Acquisition, to the extent and for so long as it remains a
direct or indirect wholly owned subsidiary of Acquisition. Other than as
permitted in the preceding sentence, this Agreement may not be assigned by any
party hereto without the prior written consent of the other party. This
Agreement shall be binding upon, and shall inure to the benefit of, each
Stockholder, Acquisition and their respective successors and permitted assigns
as set forth in the first sentence of this Section 9.
8. Notices. All notices and other communications given or made pursuant
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hereto shall be in writing and shall be deemed to have been duly given or made
if and when delivered personally or by overnight courier or sent by electronic
transmission, with confirmation received, to the telecopy numbers specified
below:
If to the Stockholder, to the Stockholder at the address appearing on
Schedule I hereto, with a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
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If to Acquisition:
AFC Enterprises, Inc.
Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxx Xxxxxxx Xxxxxx Xxxxxxx & Xxxxxxxxx, P.C.
0000 XxxxxXxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: H. Xxxxxxx Xxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address or telecopy number as any party may have furnished to
the other parties in writing in accordance herewith.
9. Specific Performance. The parties hereto agree that irreparable harm
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would occur in the event that any of the provisions of this Agreement were not
performed in accordance with its specific terms or were otherwise breached. It
is accordingly agreed that neither party shall raise as a defense in any action
seeking an injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions hereof in any court of the
United States or any state thereof having jurisdiction that such party has an
adequate remedy at law.
10. Amendment. This Agreement may not be amended or modified, except by
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an instrument in writing signed by or on behalf of each of the parties hereto.
This Agreement may not be waived by either party hereto, except by an instrument
in writing signed by or on behalf of the party granting such waiver.
11. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the Commonwealth of Massachusetts.
12. Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
13. Termination. Except as otherwise provided herein, the covenants and
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agreements contained herein with respect to the Common Stock shall terminate
upon (i) the consummation of the Merger pursuant to the terms of the Merger
Agreement or (ii) the termination of the Merger Agreement in accordance with its
terms.
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IN WITNESS WHEREOF, this Agreement has been executed by or on behalf of
each of the parties hereto, all as of the date first above written.
AFC FRANCHISE ACQUISITION CORP.
By:
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Name:
Title:
STOCKHOLDERS:
XXXXXX X. XXX EQUITY PARTNERS, L.P.
By: THL Equity Advisors Limited Partnership, its
general partner
By: THL Equity Trust, its general partner
By:
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Name:
Title:
UBS CAPITAL CORPORATION
By:
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Name:
Title:
By:
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Name:
Title:
STATE STREET BANK AND TRUST COMPANY, not
individually, but solely as trustee under a trust
agreement dated September 9, 1989, and known as
the 1989 Xxxxxx X. Xxx Nominee Trust
By:
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Name: Xxxxxx Xxxxxxx, Vice President
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SCHEDULE I
Ownership of Common Stock
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Stockholder's Name No. of Shares
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Xxxxxx X. Xxx Equity 7,600,622
Partners, L.P.
1989 Xxxxxx X. Xxx 1,100,124
Nominee Trust
UBS Capital Corporation 3,401,183
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